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The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses
Washington & Lee Law Review (2013)
  • William M Janssen, Charleston School of Law
After its opinion in Ashcroft v. Iqbal, the U.S. Supreme Court has made clear that the “plausibility” pleading regime it established in Bell Atlantic Corporation v. Twombly applies to all manner of “claims”. There is, however, no authoritative appellate guidance on whether that regime equally applies to defenses (and, more particularly, affirmative defenses). This article examines the various lower federal court decisions that have tackled this issue in the post-Iqbal period. The article introduces the national incoherence on the issue in two ways: first, by recounting the travail of one litigant who, in five different litigations spanning just seventeen months, had three different pleading variants applied to the testing of its affirmative defenses; and second, by tracking the effort of one particular court in an exemplar opinion that enjoys three valuably illustrative attributes – it is factually interesting, it aligns with the emerging national majority, and it explores thoughtfully the competing textual and functional considerations that tend to drive any analysis of this issue. The article explains why this incoherence in federal pleading practice is so deeply unsettling, highlighting how case-dispositive an affirmative defense can be, how vulnerable to waiver it is if not properly asserted, and how unlikely appellate review is to rescue an adjudicative misstep. The article then catalogues the national case law on point, notes trends nationally, verifies that the disharmony exists not merely at the circuit-by-circuit and district-by-district levels, but also at the chambers-by-chambers level, and finally describes the varying reasoning approaches embraced by the lower federal judiciary. The article concludes by evaluating the three unsatisfying strategic options available to responsive pleaders navigating this current climate of uncertainty, and demonstrates why none is reliable.
Publication Date
November, 2013
Citation Information
William M Janssen. "The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses" Washington & Lee Law Review Vol. 70 (2013)
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